The unprecedented rise of terrorism in recent years has sent shock waves of horror all across the world. Our own country is badly affected by this malaise and we would like to extend our commiserations to the people of France in relation to the terrible tragedy that occurred in Paris. Our hearts are with the French – who have always stood with the people and the government of Pakistan by helping us in the fight against terrorism and extremism – and we would like to express solidarity with the families of the victims of the massacre. Nothing justifies such insanity. As a developing nation we are all too aware that a free press is the lifeblood of democracy. In our own country, the murder of 148 innocents, including 132 children, by the Taliban in the Army Public School in Peshawar on 16 December 2014 was a deeply shocking event. It really was the last straw.

It has been reported that the attack on the school was an act of revenge which aimed to “get even” for the Nobel Peace Prize jointly awarded to Malala Yousafzai. Consequently, measures to tackle the menace of terrorism have been taken in the form of the Constitution (Twenty-First Amendment) Act 2015 ( or “the amendment”) which was speedily passed by the National Assembly and Senate on 6 January 2015 and presidential assent was given the following day. Showing solidarity across the border in neighbouring India, legendary Indian actor Dilip Kumar, who was born in Peshawar, said that “[t]he massacre has wounded me beyond words. My heart longs to reach out to the parents who lost their sons and daughters in the worst crime any country has witnessed in recent years.” And the iconic Amitabh Bachchan, who could not “even begin to describe” his feelings, said that he could “reconcile victory with defeat” but that he struggled to “reconcile with the tragedy and horror of the children in Peshawar”. He therefore exhorted us that sympathy alone was insufficient and urged prayer for the victims.

Although the COAS, General Raheel Sharif has been seen offering Quran Khwani with bereaved families, with the greatest of respect to Amitabh Bachchan, prayer alone is not enough and the preambular paragraphs of the amendment are clear that the situation in the country is extraordinary and circumstances demand special measures for speedy trials for terrorists waging war or insurrection against Pakistan. Prime Minister Nawaz Sharif was equally clear that military courts should have been established a long time ago. Explaining that the attack on Karachi Airport was an “eye-opener”, he quite rightly said that “I don’t think people who slaughter others deserve any sympathy.”

Noting the gravity of the menace posed by terrorism, the preambular paragraphs of the amendment observe the unprecedented threat to the integrity of Pakistan and objectives set out in the Preamble to the Constitution. Therefore, by virtue of the amendment it is enacted that terrorists fighting while using the name of religion or a sect, captured or to be captured in combat with the Armed Forces or otherwise are tried by the courts established under the Acts of Parliament set out in section 2 of the amendment because:

[T]he people of Pakistan have expressed their firm resolve through their chosen representatives in the all parties conferences held in aftermath of the sad and terrible terrorist attack on the Army Public School at Peshawar on 16 December 2014 to permanently wipe out and eradicate terrorists from Pakistan, it is expedient to provide constitutional protection to the necessary measures taken hereunder in the interest of security and integrity of Pakistan.

Moreover, it is also very clear in the Statement of Objects and Reasons of the amendment that:

An extraordinary situation and circumstances exist which demand special measures for speedy trial of offences relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan. There exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants, terrorists and foreign funded elements. Since there is an extraordinary situation as stated above it is expedient that an appropriate amendment is made in the Constitution.

Under section 1(2), the amendment entered into force immediately but only for a period of two years from its commencement and will be automatically repealed thereafter. Moreover, under section 2, the amendment modifies Article 175 (the opening article of Part 7: The Judicature, Chapter 1: The Courts) of the Constitution and it states that:

Provided that the provisions of this Article shall have no application to the trial of persons under any of the Acts mentioned at serial No. 6, 7, 8 and 9 of sub-part III or Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect.

Explanation: In this proviso, the expression “sect” means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.

The above supplements the existing text of Part VII of the Constitution which (in light of previous amendments) states that:

(1) There shall be a Supreme Court of Pakistan, a High Court for each Province [and a High Court for the Islamabad Capital Territory]and such other courts as may be established by law.

[Explanation: Unless the context otherwise requires, the words “High Court” wherever occurring in the Constitution shall include “Islamabad High Court”.]

(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

(3) The Judiciary shall be separated progressively from the Executive within [fourteen]years from the commencing day.

Although the amendment’s detractors are keen to draw inferences and make comparisons with Zia era (because he said that he came for three months but ended up staying for more than a decade!), it is submitted that the amendment is not disproportionate to the aim of controlling terrorism because the mechanism of trying terrorists under special measures to ensure speedy trials is not permanent and is unmistakably limited to the two-year sunset clause laid down in section 1(2). In that regard, even criticism advanced from the angle of a civil-military trust deficit in the country ends up concluding that “while not justifiable in the broader context”, establishing military courts “is a confidence-building measure that can end up strengthening democracy in the long run and [in] bridging the trust deficit between” the army and the civilian government. Moreover, whilst a petition challenging the establishment of military courts on the basis that they are offensive to the Constitution has also been lodged in the Supreme Court, PPP senator Barrister Aitzaz Ahsan has rightly said “that establishment of the military courts was the need of the hour.”

Some people are making the ill-conceived argument that the amendment is akin to suicide bombing Parliament. We submit that such people are ideologically opposed to the freedom and security of Pakistan. Such views are anchored in the misunderstanding that we are not at war – the plain truth is that the exigencies of the situation demand immediate and decisive action: for too long has our country tolerated the murder of its citizens by the Taliban. Analogies with military courts in the Ayub, Yahya and Zia eras are quite futile because those courts were created to suppress the freedoms of common Pakistanis, who were not “terrorists”, and not to deal specifically with the Taliban (who did not exist back then). In our view, the Taliban would be a step closer to suicide bombing Parliament if the amendment had not been made law.

It is possible to argue that the measures taken by Pakistan to combat terrorism are at variance with the right to a fair trial as enshrined in Article 10A (Right to fair trial) – “for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process” – of the Constitution. Moreover, it is also worth noting that the Lahore High Court has only recently acquitted four death row convicts – Fazal Mohammad, Tahir Mehmood, Hafiz Naseer and Habibullah – who were convicted by the Anti-Terrorist Court in 2004. They were awarded the death penalty for their part in the suicide attack, which killed 19 people and injured 35 others, perpetrated on Shah-i-Najaf Imambargah in Rawalpindi in 2002. The amendment should serve to mitigate the Pakistani authorities’ frustration vis-à-vis terrorists in this regard: we submit that terrorists should not be allowed to abuse the legal process by riding on the never-ending whirligig of appeals.

Furthermore, the amendment is also justifiable within the meaning of the well established doctrine of necessity which has long been the cornerstone of Pakistani public and constitutional law. Thus far, the doctrine has only benefited dictators who have, in tandem with the judiciary, used it to systemically murder democracy. So for once, let Pakistan embrace the doctrine, in the form of the amendment, and use it for something positive such as bringing mass murderers to justice. In that there can be no harm.

Our country is at war and, in the circumstances, special measures are entirely justified. Indeed, less judicial ink needs to be spilled on people whose only cowardly purpose in life is to shed the blood of innocents. We therefore agree with Aitzaz Ahsan that swift retributive justice for terrorists is the order of the day because they have completely transgressed the rules of war by murdering innocent children. As a matter of law, being merciful with mass murderers does not set the correct precedent. In the circumstances, it is appropriate for us to use the “eye for an eye” principle in dealing with the Taliban.

On the other hand, although capital punishment is prohibited in all the states contracting to the ECHR, it is well worth noting that even in the United Kingdom, special measures in relation to terrorism such as those laid down in the Justice and Security Act 2013 operate to place the government on a superior footing – so even in a first world country, it is acceptable to discriminate against terrorists. Equally, under the ECHR, it is accepted as a matter of law that, like the right to life, the right to a fair trial is a limited right and the procedural requirements of a fair hearing may differ according to the circumstances.

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